SCOTT ALEXANDER JOHNSTONE v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SCOTT JOHNSTONE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-212
[June 17, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562012CF002348 A.
Ashley Nicole Minton of Minton Law, P.A., Fort Pierce, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Determining whether an individual’s behavior is merely boorish or
juvenile as opposed to illegal stalking subject to criminal penalty can
require the drawing of fine lines. Such is the case here, where the trial
court found that Appellant Scott Johnstone had violated his probation by
repeatedly harassing his neighbors over the course of nearly three years.
Finding no abuse of discretion with respect to the court’s revocation of
probation, we affirm.
Background
Pursuant to a plea agreement, Appellant was convicted of ten counts of
possession of child pornography and was jailed for less than a year. Upon
release, he was placed on sex offender probation. Appellant moved to a
house in a residential neighborhood. Shortly after this move, an
antagonistic relationship developed between Appellant and the couple who
lived next door to him (hereinafter, “the neighbors”).
The discord began when Appellant came over to the neighbors’ home to
inform them of the child pornography convictions. In response, the male
neighbor told Appellant that his wife would not want to associate at all
with Appellant in light of the child pornography convictions and later
cautioned Appellant: “I’m serious, we can’t do this anymore, ya’ know we
cannot communicate, we can’t do this, so stay on your side, I’ll stay where
I’m at, everything will be fine.” The male neighbor stood firm with his
position despite Appellant’s attempts to convince him otherwise.
According to the neighbors, after this encounter Appellant commenced
a campaign of harassment against them. Appellant’s “yard” was several
acres. Appellant first moved his fence to the edge of his property line and
removed tree limbs, which gave him a direct view of his neighbors’
backyard. Over the next nearly three years, Appellant harassed the
neighbors (and at times their young grandchildren) by committing the
following acts:
• Appellant placed weeds, rocks, “chunks” of concrete taken
from his pond, and tree limbs onto the neighbors’ driveway,
in their yard and in front of their mailbox.
• Appellant placed barbedwire on the fence adjoining the
neighbors’ property.
• Appellant placed empty paper bags on the fence posts,
some of which would blow onto the neighbors’ property.
• Appellant painted the side of his fence that faced the
neighbors’ property with obscenities (“f— you” and “a—
holes”), a hand-painted picture of a clown-like character,
and signs, including one that said “STUPID PEOPLE
BEYOND THIS POINT” with an arrow pointing to the
neighbors’ property. Appellant’s entire property was
surrounded by the fence, but the only portion of the fence
adorned with these “ornamentations” was the portion
facing the neighbors’ property. The remainder of the fence
was not decorated.
• On several occasions when the neighbors’ grandchildren or
friends were in the neighbors’ yard (“anytime [the
neighbors] had people over”), Appellant would “burn fires”
in his yard and then drive his lawnmower in such a way
that the fire’s ashes would blow onto the neighbors’
property, by “park[ing] his mower on [the fire], leav[ing] [the
mower] on top of [the fire] with the blades engaged . . . ,
with the output of the mower facing [the neighbors’] way .
. . [and] just sit[ting] there and let[ting] it run for about 10
or 15 minutes until he got it stirred up . . . .” The fires were
set within one hundred feet of the neighbors’ house but
2
three to four hundred feet away from Appellant’s house.
The female neighbor testified that “he would always do it
in, whenever the wind was blowing towards us so that the
smoke would come over onto our property . . . [s]o anytime
we were outside with our kids he was trying to chase us
out, out of the yard.”
• On three occasions when the neighbors’ grade-schooler
granddaughter was visiting, Appellant stood in his
backyard, which faced the neighbors’ property, wearing
nothing but “whitey tighties,” and “bathed” himself with
soap and water from his hose.
• The neighbors’ surveillance cameras captured footage of
Appellant, on numerous occasions, walking back and forth
in front of their property, including in the middle of the
night.
• The final incident, which led to the neighbors’ third protest
to the police, occurred when the female neighbor was in
the pool with her granddaughter. After the female neighbor
and her granddaughter got in the pool, Appellant “walked
up to the corner of [his] property . . . and stood there . . .
staring at [the female neighbor and her granddaughter] in
the pool” for ten minutes despite the female neighbor
“yell[ing] for him to get the hell outta there.”
On several occasions, the neighbors contacted the police, fire
department (regarding the fires started in Appellant’s backyard), and
Appellant’s probation officer to complain about the most recent act of
harassment. The probation officer testified that in January 2018 she
responded to two calls from the male neighbor and a call from another
neighbor, both individuals complaining that Appellant was walking his dog
on his neighbors’ property. Appellant told the probation officer that he
believed he was walking on an access road. The officer told him “to stop
all this commotion it’s best that you just stay away from them and so there
won’t be no violations, any other issues to stay away, stay, stay away from
their property and there shouldn’t be no problems.”
A second officer testified that in October 2018, several days before
Appellant’s arrest, he responded to a call from the male neighbor. After
speaking with the male neighbor, who recounted the incidents of
harassment, the officer met with Appellant and asked him about the
complaints of Appellant trespassing on the neighbors’ property. The officer
testified that Appellant claimed he was on common property, but “then he
said well, truth be told I do [] these things to mess with [the male neighbor]
because initially he had messed with [Appellant] first.” Several days after
3
this meeting, Appellant was arrested and charged with stalking. In
addition, the State also filed an affidavit of violation of probation, alleging
that Appellant violated his probation by committing the offense of stalking.
The trial court found by a preponderance of the evidence that Appellant
violated his probation by violating the condition requiring that Appellant
“live without violating any law; conviction in a court of law is not necessary
for such a violation of law to constitute a violation of . . . probation . . . .”
In pronouncing its decision, the court noted that Appellant’s actions, such
as the signs on his fence, were targeted at the neighbors and their
grandchildren and concluded that “[a]ll of this course of conduct in my
view constitute harassment, it’s malicious and repeated and serves no
legitimate purpose.” 1 Appellant’s probation was revoked, and he was
sentenced to prison. This appeal followed.
Analysis
“[A] violation which triggers a revocation of probation must be both
willful and substantial, and the willful and substantial nature of the
violation must be supported by the greater weight of the evidence.”
Jenkins v. State, 963 So. 2d 311, 313 (Fla. 4th DCA 2007) (quoting Steiner
v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992)). “The determination
of whether a violation of probation is willful and substantial is a
question of fact and will not be overturned on appeal unless the record
shows that there is no evidence to support it.” Green v. State, 23 So.
3d 820, 821 (Fla. 4th DCA 2009) (quoting Jenkins, 963 So. 2d at 313)
(emphases added). “On appeal, the trial court’s order is reviewed under
an abuse of discretion standard.” Davis v. State, 796 So. 2d 1222, 1225
(Fla. 4th DCA 2001).
The trial court determined that Appellant had violated section
784.048(2), Florida Statutes (2018), which provides in pertinent part that
“[a] person who willfully, maliciously, and repeatedly . . . harasses . . .
another person commits the offense of stalking, a misdemeanor of the first
degree . . . .” The statute defines “harass” as “engag[ing] in a course of
conduct directed at a specific person which causes substantial emotional
distress to that person and serves no legitimate purpose.” § 784.048(1)(a),
Fla. Stat. (2018). The statute goes on to define “course of conduct” as “a
pattern of conduct composed of a series of acts over a period of time,
however short, which evidences a continuity of purpose. The term does
1 While the trial court’s oral finding discussed only these incidents, the decision
was issued immediately following the trial and the court noted that the ruling
“includes, but is not limited to these [] acts described by the testimony.”
4
not include constitutionally protected activity such as picketing or other
organized protests.” § 784.048(1)(b), Fla. Stat. (2018). Thus, stalking
requires the proof of a series of acts, willfully and maliciously directed at
a specific person(s) and evidencing a continuity of purpose, which acts
serve no legitimate purpose and cause substantial emotional distress to
that person(s).
“Malicious behavior goes beyond intent to cause injury to include
behavior that is ‘without just cause or excuse.’” Khan v. Deutschman, 282
So. 3d 965, 968 (Fla. 1st DCA 2019) (quoting Malicious, Black’s Law
Dictionary (10th ed. 2014)). This court has held that “[t]aking the text of
section 784.048(4) as a whole, and considering its context and the
discernible purposes of the legislature, we conclude that the plain meaning
of the statutory term maliciously is legal malice: i.e. ‘wrongfully,
intentionally, without legal justification.’” Seese v. State, 955 So. 2d 1145,
1149 (Fla. 4th DCA 2007).
“[S]talking is a series of actions that, when taken individually, may be
perfectly legal.” T.B. v. State, 990 So. 2d 651, 654 (Fla. 4th DCA 2008)
(quoting St. Fort v. State, 943 So. 2d 314, 316 (Fla. 4th DCA 2006)). As
such, even if Appellant’s actions, when viewed individually, were all legal,
this does not inexorably lead to a conclusion that the actions, taken
collectively, would not qualify as stalking. See id.
The course of conduct must serve no legitimate purpose to constitute
stalking. The term “legitimate” lacks a precise definition and must be
evaluated on a case-by-case basis. O’Neill v. Goodwin, 195 So. 3d 411,
413 (Fla. 4th DCA 2016). “However, courts have generally held that
contact is legitimate when there is a reason for the contact other than to
harass the victim.” Id.
The evidence clearly supports the trial court’s finding that Appellant
willfully engaged in “a pattern of conduct composed of a series of acts over
a period of time” (here, a period of nearly three years), which “evidence[d]
a continuity of purpose,” and was “directed at” one or both of the
neighbors. Shortly before his arrest, Appellant admitted to an
investigating police officer that he “d[id] these things to mess with [the
male neighbor].” Thus, by his own admission these acts were intentional,
malicious, and served the purpose solely to harass his neighbors.
The trial court found the testimony of the neighbors to be credible with
respect to Appellant’s actions. A convicted sex offender on probation for
possession of child pornography, he would stare at them from his fence
when their granddaughter was in the pool, shower while wearing nothing
5
but his underpants in view of their granddaughter, blow ashes and smoke
towards their yard when they had their grandchildren or friends over, and
trespass by dumping debris on their driveway and in front of their mailbox.
Appellant did not testify, and the court could infer from his failure to
testify, as well as his statements to the officers as to his motive behind his
behavior that he was harassing his neighbors within the meaning of the
stalking statute. See Watson v. State, 388 So. 2d 15, 16 (Fla. 4th DCA
1980) (“[T]he court may properly infer non-compliance, and thus a
violation of the condition of probation, from the probationer’s silence.”)
Appellant’s pattern of conduct was “malicious,” as it was “without just
cause or excuse.” And no “legitimate purpose” was served by any of the
actions discussed above, in the manner they were performed. As distinct
from the cases cited by Appellant and the dissent, this was not a “tit-for-
tat” dispute between two neighbors. Cf. Power v. Boyle, 60 So. 3d 496,
499 (Fla. 1st DCA 2011) (finding that, inasmuch as the applicant for an
injunction had threatened the defendant, the relationship between the two
“is more tit-for-tat than stalker-victim”). This was a vendetta carried out
by one individual against his neighbors and their minor grandchildren,
due to no more than his apparent discontent that the neighbors did not
want to associate with him after learning he was a convicted sex offender.
Appellant admitted that his hostile actions were “to mess with [the male
neighbor],” but he claimed that the male neighbor had “messed with him
first.” No explanation as to how the neighbor “messed” with Appellant was
provided below.
Finally, Appellant claims that the State did not prove that his actions
caused substantial emotional distress. When determining whether a
defendant’s conduct would cause “substantial emotional distress,” courts
apply a reasonable person standard. Bouters v. State, 659 So. 2d 235, 238
(Fla. 1995); T.B., 990 So. 2d at 654-55 (“[T]he standard is that of a
reasonable person in the same position as the victim.”). To satisfy this
prong of the stalking statute, the defendant’s conduct must cause
substantial emotional distress, which is greater than just an ordinary
feeling of distress. Shannon v. Smith, 278 So. 3d 173, 175 (Fla. 1st DCA
2019). This court has explained that the “reasonable person standard is
applied to a person in the position of the party,” and “the standard is case
specific.” David v. Textor, 189 So. 3d 871, 876 n.1 (Fla. 4th DCA 2016).
“In determining whether an incident or series of incidents creates
substantial emotional distress for a victim, the distress should be judged
not on a subjective standard (was the victim in tears and terrified), but on
an objective one (would a reasonable person be put in distress when
subjected to such conduct?).” D.L.D. v. State, 815 So. 2d 746, 748 (Fla.
6
5th DCA 2002) (citing McMath v. Biernacki, 776 So. 2d 1039, 1041 (Fla.
1st DCA 2001)).
In the context of this case, with innocent parties subjected to a variety
of unprovoked, malicious, and unrelenting forms of harassment over a
period of nearly three years, we cannot say that the trial court lacked “any
evidence” to find that a reasonable person in the same position as the
victims, the neighbors, would be substantially distressed when subjected
to this conduct. See T.B., 990 So. 2d at 655 (“Obviously, many persons
would not react in the same way as this victim; some might respond in
kind, others might recall the old saying, ‘sticks and stones may break my
bones but names can never harm me,’ others might respond with violence,
but in each instance, it is likely to cause emotional upset.”).
Conclusion
As set forth above, there was ample evidence to support the trial court’s
ruling. Appellant’s individual acts over the course of nearly three years
cannot be viewed in a vacuum. Although the dissent maintains “it takes
two to tango” and argues that the trial court asserted itself into a “tit-for-
tat” neighbor dispute, there is no evidence that the neighbors were
anything other than victims to a continuing pattern of malicious and
willful harassment directed their way with the sole purpose of “mess[ing]
with [them].”
Appellant, an individual on sex offender probation was warned well in
advance of his arrest “to stop all this commotion[,] it’s best that you just
stay away from [the neighbors] and so there won’t be . . . violations, any
other issues to stay away, stay, stay away from their property and there
shouldn’t be . . . problems.” Notwithstanding this warning, Appellant
persisted in his offensive and unwelcome conduct, directed at the
neighbors for no legitimate purpose, causing substantial emotional
distress.
Accordingly, we cannot say that the trial court, as the judge of the
credibility of the witnesses (here, primarily the neighbors) and the finder
of fact, abused its discretion in determining, by a preponderance of the
evidence, that Appellant violated his probation. Thus, we affirm the trial
court’s order.
Affirmed.
WARNER, J., concurs.
7
KLINGENSMITH, J., dissents with opinion.
KLINGENSMITH, J., dissenting.
When one thinks of acts that constitute harassment, a few examples
immediately come to mind: late-night hang-up calls; frequent unwelcomed
visits to a workplace; multiple disturbing notes or mailings. See, e.g.,
Thoma v. O’Neal, 180 So. 3d 1157 (Fla. 4th DCA 2015). With the majority’s
opinion, we can now add garish fence painting, unproven property
damage, and outdoor hose-rinsing to that list. As such, this case provides
yet another illustration of the misuse of the stalking and harassment
statutes. What the majority does today is ratify the use of this statute to
punish people for engaging in petty annoying behavior in the context of a
neighborhood dispute. While this is good news for Mr. and Mrs. Shockley
because their problem was solved, it is bad news for our jurisprudence
and everyone else because it marks the slide down a slippery slope. For
that reason, I dissent.
At appellant’s revocation hearing, the trial court heard from the
Shockleys about appellant’s various antics. The majority’s opinion
recounts many of them, including those which the trial court made no
findings about. In fact, the court only made these specific findings of fact
about appellant:
• Running a lawnmower over fire ashes and spreading fire ashes
around so they blew over on the Shockleys’ property had no
legitimate purpose;
• Placing a sign on his own property that says “stupid people live here”
served no legitimate purpose;
• Bathing or washing outside in underwear where appellant could be
seen, even at quite a bit of a distance “in and of itself may be a little
unusual, perhaps not illegal, but I can’t come up with a legitimate
purpose for that when other people are present”;
• Painting the fence with clowns on it, knowing the grandchildren
were present at the Shockleys’ home, was directed at the Shockleys’
home; it was not painted around any other area or directed at
anyone else or the entire fence was not painted in that area. “I can’t
imagine no (sic) legitimate purpose for that”;
• Bringing brush, debris, and cabbage palm trees and leaving it in
front of or adjacent to the Shockleys’ mailbox “in my view serves no
legitimate purpose”; and
8
• Placing rocks or pieces of concrete in the roadway. Though no one
saw appellant do it, “it’s a reasonable conclusion based on the other
behavior to conclude he would do that.”
In making these findings, the trial court found persuasive that
appellant told the deputy he was doing things “to mess with [the
Shockleys].” 2 The trial court also found that these events were a course of
conduct constituting harassment, that they were malicious, repeated, and
served no legitimate purpose. Thereafter, the court revoked appellant’s
probation. So regarding the record of findings by the trial court, we are
constrained to review the application of law to only those incidents of
conduct articulated by the trial judge in finding a pattern of conduct
constituting stalking behavior. 3 See Thoma, 180 So. 3d at 1160.
Under section 784.048(2), Florida Statutes (2018), “[a] person who
willfully, maliciously, and repeatedly follows, harasses, or cyberstalks
another person commits the offense of stalking . . . .” Further, the statute
defines “harass” as a “means to engage in a course of conduct directed at
a specific person which causes substantial emotional distress to that
person and serves no legitimate purpose.” § 784.048(1)(a). This statute
specifically exempts constitutionally protected activities. See §
784.048(1)(b).
“[C]ourts have generally held that contact is legitimate when there is a
reason for the contact other than to harass the victim.” O’Neill v. Goodwin,
195 So. 3d 411, 413 (Fla. 2d DCA 2016). A finding of “no legitimate
purpose” to a given action must not only comport with common sense, it
must also be evidenced by a complete lack of usefulness or utility. See
David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016) (“[W]hether a
communication serves a legitimate purpose is broadly construed and will
cover a wide variety of conduct.”). The action complained of must be so
entirely bereft of a valid purpose that the only possible reason to engage
in such acts would be to cause substantial concern or distress to the
2 This statement was made to the investigating officer after the Shockleys called
the police when they saw appellant simply walking down a nearby access road or
easement. This was the incident that precipitated appellant’s arrest in this case.
3 While the majority admits that the findings articulated in this dissent were the
only ones made, the opinion nonetheless includes the Shockleys’ other
allegations to help bolster its holding, all because the trial court noted that its
ruling “includes, but is not limited to these [] acts described by the testimony.”
However, that “catch-all” statement would not qualify as a finding of fact in any
other case, and the majority fails to adequately explain why it should be deemed
sufficient here.
9
intended target. The majority notes that appellant provided no
explanation for some of these acts. Regardless, it is immaterial whether a
defendant provides an explanation of purpose, or whether one of the
purposes (in addition to any valid ones) is to “mess with” someone.
Considering that the courts have defined malicious actions as those that
are done “wrongfully, intentionally, [and] without legal justification,” none
of the actions allegedly engaged in by appellant met that definition. See
Seese v. State, 955 So. 2d 1145, 1149 (Fla. 4th DCA 2007).
One example involves the cited act of appellant rinsing himself off
outdoors with a hose. The trial court found this to be a “little unusual,
perhaps not illegal” yet without any legitimate purpose when other people
are present. The court erred in making such a finding. With all due
respect to the trial court, there are many obvious legitimate purposes for
doing this, the most patent of which is a desire to prevent tracking dirt
from your body or from very soiled clothes into your house. Further, there
was no evidence that appellant was aware he was being observed since he
was quite a distance away from the Shockleys’ house. Even if he did know
the Shockleys were watching, standing outside on your own property
rinsing off with a hose while wearing “underwear” as the Shockleys claim,
or “shorts” as described by the investigating officer, is not even close to the
type of conduct that falls within the stalking and harassment laws even if
done in full view of others. If appellant violated no laws against nudity or
lewd and lascivious behavior—and there is no suggestion that he did—the
Shockleys’ mere disdain at this behavior does not and cannot translate
into a violation of the statute.
Apart from the alleged (and unproven) instance regarding the
appearance of debris on the Shockleys’ driveway which was attributed to
appellant by suspicion and without evidence, all of the acts found by the
trial court to fall within the scope of the statute were about appellant’s
actions on either his own property—property he is allowed to use for his
own personal and lawful enjoyment—or places he had a legal right to be.
The evidence presented at the hearing was insufficient to establish that
any acts, or series of temporally related acts, could combine with others to
constitute stalking. In Butler v. State, 715 So. 2d 339, 341 (Fla. 4th DCA
1998), this court held that, like here, there was no testimony establishing
a “series of acts” where defendant and alleged victim were involved in
violent incidents on two occasions six months apart. Here, the State
cannot aggregate six different types of acts—all occurring over the span of
three years where repeated calls to law enforcement resulted in no arrests,
citations, or verified complaints—to substantiate a stalking claim. While
the Shockleys recounted several incidents diffusely spread out over that
10
timeframe, they are so dissimilar—and apart from the painted fence,
unsustained—that they cannot be described as a “course of conduct.” The
only actions that appear to be repeated or sustained were the Shockleys’
calls to law enforcement about appellant’s behavior.
Last, and most importantly, although the trial court recognized its
obligation to make a factual determination at the evidentiary hearing, it
failed to do so on a critical point. The stalking statute requires the State
to prove—and the court to make a finding—that the alleged victim or
victims suffered “substantial emotional distress” under a reasonable
person standard as a result of the acts alleged. A review of the record
shows this issue was never addressed in the trial court’s recitation of its
factual findings. As the Fifth District explained in D.L.D. v. State, 815 So.
2d 746, 748 (Fla. 5th DCA 2002):
[I]n determining whether an incident or series of incidents
creates substantial emotional distress for a victim, the
distress should be judged not on a subjective standard (was
the victim in tears and terrified), but on an objective one
(would a reasonable person be put in distress when subjected
to such conduct?).
(citing McMath v. Biernacki, 776 So. 2d 1039, 1041 (Fla. 1st DCA 2001)).
Under this standard, the focus is not on the Shockleys’ subjective feelings,
but rather, the reaction of a reasonable person in the Shockleys’ shoes.
See T.B. v. State, 990 So. 2d 651, 654-55 (Fla. 4th DCA 2008). The
Shockleys did not testify that they experienced fear, anxiety or loss of
sleep, nor did they seek counseling, increase security measures, or
undertake any other acts consistent with or demonstrating substantial
emotional distress. More importantly, the court made no factual finding
that they had. This too was error. See Chevaldina v. R.K./FL Mgmt., Inc.,
133 So. 3d 1086, 1092 (Fla. 3d DCA 2014) (trial court erred in failing to
set forth factual findings justifying violation of stalking statute).
There was limited testimony at the hearing about any “substantial
emotional distress” suffered by either Mr. or Mrs. Shockley, and the
evidence was wholly insufficient for making such a finding. This is the
most likely explanation for why the trial court failed to make any finding
of fact on this issue: while the Shockleys were certainly upset and angered
by appellant’s conduct, it cannot be said that a reasonable person in their
shoes would suffer substantial emotional distress.
For example, while the majority points to the installation of cameras at
the Shockleys’ home to bolster their view of the evidence, a point on which
11
the trial court did not make any findings, a closer read of the evidence
suggests this was done as more of a way to gather evidence than for
personal protection. In fact, nothing in the record suggests that appellant
ever threatened the Shockleys with harm. Mere irritation, annoyance,
embarrassment, exasperation, aggravation, and frustration, without more,
does not equate to “substantial emotional distress.” See § 784.048(1).
To satisfy this prong of the stalking statute, the court must find that
the defendant’s conduct caused distress which is greater than just an
ordinary feeling of discomfort. See Shannon v. Smith, 278 So. 3d 173, 176
(Fla. 1st DCA 2019) (“[E]mbarrassment does not equate to substantial
emotional distress”). That did not happen here. While the court expressed
a legal conclusion that harassment had taken place, it was made without
a factual determination regarding an important statutory element—even
though the court made the required findings on all the others. Such a
determination cannot merely be assumed or inferred. As a result, this
deficiency in the court’s findings of fact taints the trial court’s ultimate
legal conclusion and constitutes reversible error.
The majority has effectively given the Shockleys veto power over their
neighbor’s lawful but annoying behavior. Though the Shockleys’ irritation
with this “bad neighbor” is understandable, they are not entirely blameless
in this situation. As with any neighborhood feud, whether it be the
Hatfields and McCoys, or the Shockleys and Johnstones, pinpointing who
is responsible for starting the tit-for-tat is difficult. But one thing is
certain: it takes two to tango. The record makes clear that the Shockleys
embarked on a campaign of lodging numerous complaints to both law
enforcement and appellant’s probation officer about appellant’s irritating
behavior with the clear intent to have his probation violated and send him
back to prison. 4 No doubt these constant complaints stoked the fires of
appellant’s enmity and provoked his ill-feelings toward the Shockleys. In
the end, the trial court did just what the Shockleys wanted all along: it
had appellant removed from the neighborhood and returned to jail. With
the help of law enforcement and a cooperative probation officer, their plan
worked.
4 At the revocation hearing, the Shockleys testified about several complaints they
lodged with law enforcement and admitted that getting appellant’s probation
revoked was their goal. The majority’s attempt to solely pin the dispute on
appellant is belied by the record. In doing so, the majority ignores the numerous,
repeated, and dubious complaints the Shockleys called in to law enforcement
over the years which, “includes, but is not limited to” their complaint about
appellant walking down the easement road, as well as their complaint about
appellant building a carport on his property.
12
A similar plan that follows the majority’s newly ratified blueprint may
also work in future disputes. Because the majority has now approved the
use of the stalking statute to tilt the scales in relatively minor
neighborhood quarrels, thus raising unsociable behavior to the level of
unlawful harassment, I have no doubt that a future community combatant
will use this case as support for securing either an injunction or an arrest
in another neighborhood fray. That is exactly what this court decried in
Klemple v. Gagliano, 197 So. 3d 1283 (Fla. 4th DCA 2016), where we
reversed an injunction entered in a case where two neighbors routinely
engaged in uncivil behavior towards one another. There, we said that “[t]he
statute does not allow the trial court to enter injunctions simply ‘to keep
the peace’ between parties who, for whatever reason, are unable to get
along and behave civilly towards each other.’” Id. at 1286 (quoting Power
v. Boyle, 60 So. 3d 496, 498 (Fla. 1st DCA 2011)). Although no injunction
was issued here, the Shockleys, law enforcement, appellant’s probation
officer, and the court nonetheless used this statute to do just that despite
our admonition in Klemple. The majority’s decision affirming that result
in this case is a step toward eroding the limitation we set forth in Klemple
and allows the stalking statute to now become an oft-used arrow in the
quiver for feuding neighbors to aim at one another.
I recognize that in most cases the trial judge is in the better position to
evaluate the tenor of the incidents described and may exercise a great deal
of discretion in deciding matters of probation revocation. See Zelaya v.
State, 87 So. 3d 1257, 1259 (Fla. 4th DCA 2012). But such revocations
must have a sufficient legal and factual basis, and this record shows there
was not. Unlike the majority, I would not elevate this neighborhood
squabble into the ambit of section 784.048(2). The trial court erred in
allowing the stalking statute to be used to regulate appellant’s annoying
but lawful behavior and in failing to make an appropriate finding of fact
on a critical statutory requirement. For these reasons, I disagree with the
result reached by the majority and would reverse the trial court’s decision
to revoke appellant’s probation.
* * *
Not final until disposition of timely filed motion for rehearing.
13